How held that the misconduct of police officers

How
effectively does the judiciary protect civil liberties in the UK?            Unlike in Malaysia,
there is an absence of codified constitution in UK. Therefore, the protection
of civil liberties is deemed to be not comprehensive and effective enough as
rights provisions are usually incorporated in a Constitution. However, UK being
part of the European Convention on Human Rights (herein after referred to as
‘ECHR’), has incorporated the provisions of ECHR and passed Human Rights Act
(hereinafter referred to as ‘HRA’) in 1998. HRA grants rights to citizens
nevertheless. The passing of HRA allows judges to
play their role  in giving rights to
citizens easier and more straightforward without having to refer to common law
precedents as there is already a concrete document that outlines the rights of
citizens.1  Through this, the protection of civil
liberties is more effective because judges can give their judgment in favour of
citizens based on HRA. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001,
the magazine was to publish a series of photographs of Jones’ wedding. The
court ruled that right to privacy has been given to Jones according to HRA
despite being a celebrity. The magazine lost the right to expression as wedding
is of confidential matters. Moreover, judiciary could protect
civil liberties by carrying out judicial review. Judicial review is a process
in the Supreme Courts to examine lawfulness of cases. For instance, in the case
of Christopher Alder,
he died while in police custody. The police officers went on a trial for
manslaughter but subsequently being acquitted. The case was appealed to the
European Court of Human Rights. The court then held that the misconduct of police
officers was against Article 5 of ECHR. Judges can also declare incompatibility
any acts which is ultra vires HRA. In the case of David Miranda, it was a provision under Schedule 7
of Terrorism Act 2000 that travellers are allowed to be questioned to find out
whether they appear to be terrorists. The court decided that schedule 7, as in
force at the time of this incident, did not provide sufficient protection
against the examination of journalistic material as provided under ECHR. In
this way, the judiciary’s ability to reverse executive action by ruling it
beyond its powers provides a very effective protection of liberties in the UK.2However, it must also be noted that UK
upholds parliamentary supremacy instead of constitutional supremacy. Parliament
seems to hinder the function of judiciary wherein critics see the judiciary
power is too weak to protect civil liberties. Parliament legislate rulings and
all rulings are binding on all bodies. If one ruling is not in favour of the
government, government can then pass a new act to avoid the ruling. This can be
illustrated by a famous UK human rights case – the Belmarsh case. This case was heard before the
House of Lords. It was held that the indefinite detention of foreign prisoners
in Belmarsh without trial under Section 23 of the Anti-terrorism, Crime and
Security Act 2001 was incompatible with the European Convention on Human Rights.
The parliament then decided to replace Part 4 of ATCSA 2001 with the Prevention
of Terrorism Act 2005 which allows anyone of any nationality to be subjected to
a control order. This shows that without an entrench constitution, the erosion
of civil liberties can easily happen.  Other than that, courts can only be
involved in protecting liberties via appeal. This means that the case must be
challenged or brought before a court to engage in its protective role. Judges
cannot be pro-active to file a case examining the lawfulness of a case. Thus, a
law can stand for years before being called incompatible. For example, in Belmarsh case again, the case
was only brought before the court in 2004 although the ATCSA has established 3
years back.3
This has weakened the ability of judiciary in protecting civil liberties as
judiciary plays a negative role.In addition to that, judges have no
power to strike down an act but only to declare incompatible to HRA. It means
there is still likelihood the incompatible act would not be changed as it is
subjected to the decision or Parliament. This is because Parliamentary is
always supreme and cannot be challenged. According to A.V. Dicey, ‘The principle of parliamentary sovereignty
means neither more nor less than this, namely that Parliament has, under the
English constitution, the right to make or unmake any law whatever; and further
that no person or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament.’4 In a brief conclusion, the rights of
citizens are effectively protected by HRA. However, the power of judiciary in
interpreting the law is subjected to the sovereignty of Parliament which may
erode the rights of citizens by passing new rulings.                       How
effectively does the judiciary protect civil liberties in Malaysia?            In
Malaysia, there is a codified constitution which creates three independence
branches which have their respective roles and shall not interfere each other.
This depicts the concept of separation of power which grants independency to
judiciary. Judiciary independence is so important in protecting civil liberties
as they are free to give judgement independently without subject to any undue
pressure or whatsoever.             Malaysian
are so fortunate to have an entrenched constitution that has right provisions.
Also, Malaysia upholds Constitutional Supremacy which means constitution is
supreme over all other bodies in Malaysia. Courts play the role of
‘constitutional interpretation’ whereby judges can interpret and apply law to
achieve their aims but their judgement should forever be in line with the
constitution. The role of judiciary to protect civil liberties can be seen in
one of the most famous case, Andrew
s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur5,
Suffian LP mentioned that, ‘…any form of detention does violence to Art. 5(1)
of the Constitution…and hence power given by law to detain must be construed
strictly and in cases of doubt or ambiguity the court should then lean in
favour of the subject…’. This means that the judiciary should interpret the rights
provisions in constitution as broadly as possible as to give citizens their
rights.Having to say judiciary as the
protection of civil liberties, it means that judges can strike down whatever
act of parliament which deprives the rights of citizens as ultra vires the
constitution via judicial review.6 This
is because by virtue of Art 4(1), in Malaysia only the Constitution is supreme.
Constitution is rather rigid than the Parliament in UK. Acts which are declared
incompatible to HRA in UK can have better fate than acts which are being struck
down by courts as ultra vires the constitution. Judiciary in Malaysia seems to
protect citizens’ rights effectively and properly from a day to day basis.
However, if we are saying that independency of judiciary is the key element for
the protection of rights, judiciary has lost their absolute independency after
the grave Judicial Crisis in 1988. 
During that time, Tun Salleh Abas was being sacked after a tribunal formed
against him to dismiss him from his seat as he has recommended to the YDPA
requesting him to stop Prime Minister’s media onslaught of the judiciary. PM
being unhappy with the judiciary formed a tribunal to dismiss Tun Salleh Abas. Malaysia’s
judiciary has remained under a cloud since the 1988 constitutional crisis that
saw the dismissal of Salleh during the administration of Tun Dr Mahathir
Mohamad.7
The effectiveness of judiciary in protecting civil liberties will definitely be
decreased if they are always acting under such a pressure.Besides, it must be marked that some
Articles in the Federal Constitution are actually opening a room for the
contradiction of rights, or worse, causes civil liberties to be suspended.
Article 150 allows YDPA to issue Proclamation of Emergency at times of grave
emergency, at that particular moment the whole constitution will be suspended
and so the rights provisions incorporated in Federal Constitution. Citizens
will have their rights deprived at such time. In the case of Kam Tek Soon v Timbalan Menteri Dalam
Negeri8,
the Federal Court held that Article 5 on rights to life and liberty does not
apply to laws passed under Articles 149 and 150.Too, if we look at Article 10 of
Federal Constitution which grants freedom of speech and expression, media and
press in Malaysia do not actually enjoy the absolute freedom of speech and
expression. According to Printing Presses and Publications Act 1984, Section 7
(1) gives power to the Minister to prohibit the publication of any press or
media which he thinks may be prejudicial to public order, morality and security
in his absolute discretion. This section has restricted the ability of courts
to give rights to those medias and presses. Judiciary can do nothing to
challenge or strike down the act declaring it as ultra vires the constitution
as the Constitution itself provided for such restrictions to be imposed.
Therefore, even there is an entrenched constitution, judiciary nevertheless
cannot help to protect citizens right when the rights provision itself is not
sufficiently prorated.     How
effectively does the judiciary protect civil liberties in South Africa?            In South Africa, there
is a written constitution. The rights provisions are stated in detail in
Chapter 2 of the constitution. Chapter 2 is the Bill of Rights of South Africa.
It lays down all the civil liberties that their citizens enjoy.             The
judiciary, by many ways, is protecting civil liberties. Judiciary while playing
their role in settling disputes is enforcing the rule of law and ensuring all
are treated equally. Section 9 of the Bill of Rights ensures that everyone is
equal before the law and has the right to equal protection and benefit of the
law. Also, the courts hear cases of discrimination which might adversely affect
the rights of women or minorities. Since there is a supreme constitution and
rigid bill of rights, the court always decide cases based on rulings which are
in line with the constitution.Moreover, African Commission on Human
and Peoples’ Rights (ACHPR) will oversee and interpret the Charter of rights
which promote and protect human rights and basic freedoms in the African
continent.9
The judiciary task is to uphold the Charter of rights or common law rights or
statutory rights through the process of judicial review. Through this, the
citizens’ rights are well protected. Other than that, cases may also
ultimately be taken to the African Court on Human and Peoples’ Rights whenever
there is a serious dispute on human rights. This increases the effectiveness
and efficiency of judiciary in protecting civil liberties as there is a special
court which handles exclusively matters on human rights.Judiciary also carries out judicial
review on public bodies decision. Courts ensure government does not abuse its
powers at the expense of civil liberties by reviewing cases dealing with the
ways in which government has acted and reached decisions. In addition to that,
judges can, by acting in the legislature or other media, express views on civil
liberties that might influence government and parliament. Generally, by
preserving their independence, judges can maintain their ability to protect
liberties.10            However, if we
want to look at the dark side of judiciary as protection of civil liberties, we
can see that the constraints that rested upon the judiciary are laws that
imposing restrictions on the rights. The courts have not taken a stronger
libertarian stance as some of the judges opine that the violation of some
rights are for state order and security. Allen Drury, in his book ‘A Very
Strange Society’ records an interview with judges who attest his nonchalance on
the application of Internal Security Act.11

1 How effective is the judiciary in
protecting civil liberties in the UK? (40 marks) AS Unit 2. (2018).
Britishcitizen.blogspot.my. Retrieved 23 January 2018, from
http://britishcitizen.blogspot.my/2013/03/how-effective-is-judiciary-in.html

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2 Government issues landmark apology
over Christopher Alder’s death in custody. (2018). Liberty Human Rights.
Retrieved 23 January 2018, from
https://www.liberty-human-rights.org.uk/news/press-releases/government-issues-landmark-apology-over-christopher-alder%E2%80%99s-death-custody

3 A and others v UK. (2018).
Lawteacher.net. Retrieved 23 January 2018, from
https://www.lawteacher.net/cases/a-and-others-v-uk.php.

4 Dicey, A. (1915). Introduction to
the study of the law of the constitution (8th ed., pp. 37-38). Macmillan:
Liberty Fund, Inc.

5 1976 2 MLJ 156.

6 Webmaster, M. (2018). Ex-judge:
Judiciary never fully recovered from 1988 crisis. Malaysia Today. Retrieved 24
January 2018, from http://www.malaysia-today.net/ex-judge-judiciary-never-fully-recovered-from-1988-crisis/

7 Administrator, W. (2018). The
Malaysian Bar – Legal Nutshell Judicial Review. Malaysianbar.org.my. Retrieved
24 January 2018, from http://www.malaysianbar.org.my/legal/general_news/legal_nutshell_judicial_review.html

8 2003 1 MLJ 321.

9 African Charter on Human and
Peoples’ Rights / Legal Instruments / ACHPR. (2018). Achpr.org. Retrieved 24
January 2018, from http://www.achpr.org/instruments/achpr/

10 IB, A., & Politics, G. (2018).
How Effectively does the judiciary protect civil liberties. Getrevising.co.uk.
Retrieved 24 January 2018, from
https://getrevising.co.uk/diagrams/how_effectively_can_the_judiciary_protect_civil

11 Drury, A. (1968). “A very strange
society”. New York: Pocket Books.